Mead v Clarke Chapman & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE PARKER |
| Judgment Date | 05 December 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1205-2 |
| Court | Court of Appeal |
| Date | 05 December 1955 |
[1955] EWCA Civ J1205-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton,
Lord Justice Jenkins and
Lord Justice Parker
Mr L.G. SCARMAN (instructed by Messrs Hills, Sickerstath & Co.) apposed on behalf of the Appellant.
Mr JOHN RUSSELL (instructed by Messrs Carpenters) appeared on behalf of the Respondents.
Mr Alexander scott was a welder employed by the Defendants, Clarke chapman & Company Limited, who are engineers. On the 15th January, 1951, he was working as a welder at a power station which was in the course of construction at Naval Row, Poplar. He fell from a height and he was killed. The Defendants recognise thathis death was brought about through their negligence and that they are responsible in damages to his widow. This action is brought by the widow on her own behalf and on behalf of a small girl, her daughter. The daughter was born on the 24th September, 1950: that is, about four months before her father was killed. On the 27th September, 1951, the mother, Mrs scott, married again. She married a man named , and her action is brought in the name of Anne . She claimed damages under the Fatal Accidents Act of 1846, an Act which provided that on action would lie in respect of the death of a person when the death was caused by the wrongful act neglect or default of someone. Section 2 of the Act provides that "every such action shall be for the benefit of the wife, husband, parents, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executer or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such actor shall be brought", The action may now be brought in the name of the window, if there is no executor or administrator; and, merely in order to show that I do not overlook it, there is a definition of the word "child" in Section 5 of the Act.
It was claimed on behalf of the window that she was entitled to damages under the Fatal Accidents Act and that her daughter was entitled to damages. There was also a claim for by the widow under the Law Reform ( Provisions) Act in respect of the Ioss of expectation of lifeof her husband. Mr Justice Denovan, before when the case came, awarded the Plaintiff the sum of £400 under the Law Reform ( Miscellaneous Provisions) Act and a further sum of £35 in respect of funeral expense.
The question of difficulty which arrest was in regard to the dangers to be awarded under the Fatal Accidents Act. Mr Scott was 23 years old when he was killed. He was earning £8. 10. 0. a week as a welder. No evidence was given as to what he might have earned if he had lived a little longer, though most of us know that waged of workmen of that type have increased considerably. The second husband, Mr Mead, is a lorry driver and at the date of the trial he was earning £8. 10. 0. a week. The learned Judge asked Mrs Head: "What is your present husband earning? (A) About £8. 10. 0. a week". That is precisely the same sum as the first husband was earning - but there is years, difference in time. However, it was taken without objection that the earnings of the first husband were the same as the earnings of the second husband.
It was submitted to the judge on behalf of the Defendants that dependency of the wife upon the husband who was killed ceased when she married a second time, and that no damages ought to be given to her in respect of any time after here second marriage, for it was said there was no less thereafter; she was as well off as she was before. That was accepted by the learned Judge. He gave damages to the Plaintiff in respect of the 36 weeks period between the death of her first husband and her marriage to Mr Mead. She had said that her husband gave her £6. 10. 0. a week, and the Judge calculated that the less to the family was £5 a week for 36 weeks, and thus he awarded £180 damages under the Fatal Accidents Act. He divided these in this way: "I apportion £36 to the infant and the balance of £144 to the Plaintiff". I have said already that he awarded damages to the Plaintiff as the executor oradministrator of her husband's estate, under the law Reform Act. Strictly, the damages awarded under the one ought to be set off against the other, but that was not done and no question is raised upon it upon this appeal.
The damages awarded to the child, who was four months old at the time of her father's death, are very small, £36, and they were given in respect of the period up to the second marriage of her mother. Prior to the death of her first husband, the Plaintiff and her husband and her child were living in a room at her child now have a room in another house, and she has a child of her second marriage. There was very little evidence, just a few answers by the Plaintiff and about eight questions in cross-examination. Mr Russell asked her: "Would it be right to say that really, so far as the way you live is concerned, you are living very much the same as when your husband was alive? (A) Yes. (Q) Is your present husband found of Christine? (A) Yes, very fond. (Q) He looks after her nicely? (A) Yes. (Q) He is a lorry driver? (A) Yes": and that is the end of the evidence.
It is said on behalf of the Defendants that the right to damages of the child ceased to be effective when her mother married again, by reason of the fact that the second husband, her step-father, was kind to her and looked after her and treated her nicely. The learned Judge fielded to that argument and gave no damages to the child in respect of any time after the second marriage of her mother. The Plaintiff appeals, not against the award of damages to her, for in one sense she got more than she might have got, because of the point which might have been taken that the damages awarded under the Law Reform Act fell to be considered as against the amount awarded to the widow under the Fatal Accidents Act. Mr Scarman, on behalf of the Plaintiff, submitted chat the Judge shouldhave paid no regard to the fact that the daughter had a step-father, as the benefit from that quarter did not to the daughter as the result of the death. Secondly and alternatively, he submitted that, if he was wrong in his first submission, the learned judge was wrong in holding that the dependency wholly ceased when the daughter had step-father.
The question of damages under the Fatal Accidents Act leads to question of come nicety. It is clear that the damages to be awarded must be based on less or expectation of pecuniary loss. I do not propose to go through the authorities which have been cited to us, one of the most useful of which is Baker v. Dalgleish Steam Shipping Company (1922 1 King's Bench, page 361) and in particular the Judgment of Lord Justice Scrutton at page 371, 372 and 373. I do not read it, for it is sufficient for my purpose to refer to a case in this court quite recently, Peacock v. Amusement Equipment Co. Ltd., 1954 2 Queen's Bench, page 347. In that case the question arose as to the measure of damages under the Fatal Accidents Act. There was a sum of money which had been paid by step-sons to their step-fathers, which money they had received from their mother's estate. Their handing a portion of the money they had received to their step-father was a voluntary act: and it was held that the amount received by the step-father from his step-sons ought not to be deducted from the amount awarded under the Fatal Accidents Act as damages in respect of the death of the plaintiff's wife. Lord Justice Somervell, in the course of his judgment, at page 353 cited words of Lord Justice Scrutton in the case of Baker v. Dalgleish Steam Shipping Company as follows: "Lord Justice Scrutton also said: 'The same principle applies to voluntary benefits conferred in consequence of the death. Just as in the less by the death the probability of voluntary contribution destroyed by the death of the contributor may be included to swell the claim, no theprobability of voluntary contribution in consequence of the death may be used to reduce the claim by showing that less the claimant has in fact...
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...to uphold these high sums reliance was placed by learned counsel for the respondents on the decision of this court in Mead v. Clarke. Chapman & Co. Limited. reported in 1956 1 Weekly Law Reports at page 76. In my view that was a very different case from the present one and not very helpful ......
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